The Court of Criminal Appeal dismissed Kenneth Cunningham’s appeal against his murder conviction and refused leave to appeal on eight additional grounds. The judgment, delivered by Finnegan J. on 24 May 2007, found no basis to overturn the trial judge’s decisions challenged by the defence.
Cunningham had been convicted of murdering Laurence Garvey in County Louth on 24 December 2003. The trial judge certified one appeal ground: whether the jury should have been discharged after witness Gráinne Hearty referred to a man she saw at one location as the same man she had earlier seen assaulting someone elsewhere.
Before the jury, the trial judge directed them to disregard any link Hearty had made between the man at Culhane Street and the man seen assaulting another person on Patrick Street. He stressed that she had given no description of the man at Patrick Street, and that evidence about the viewing distance meant she could not have seen his face from her vantage point. The appeal court held that the trial judge had properly exercised his discretion and given directions aimed at preventing the jury from relying on the inadmissible identification evidence.
The other grounds concerned Garda entry to Cunningham’s home, his detention before arrest, online commentary about the trial, the treatment of his partner Linda McKeown as a hostile witness, the absence of video recordings of Garda interviews, the prosecution’s explanation of reasonable doubt, the refusal to direct a not-guilty verdict, and directions about video evidence and McKeown’s interviews.
The court rejected those challenges. It said Cunningham had invited the Gardaí into his home, so there was no obligation in the circumstances to tell him he could refuse entry. It found he was in his own home, not in the unfamiliar setting of a Garda station, and that the evidence challenged on detention grounds was not obtained in breach of a constitutional right or tainted by illegality.
On the online comments, the court accepted the jury’s answer that no juror had accessed the website before the trial judge’s warning, and found no real risk of unfairness. It found no error in allowing the prosecution to cross-examine McKeown as a hostile witness. It also upheld the admission of Cunningham’s unrecorded interviews, noting the trial judge’s consideration of the practical disruption of moving the investigation from Dundalk on Christmas Eve.
The court concluded that the trial judge had adequately explained reasonable doubt, that the prosecution case was properly left to the jury, and that no further direction on the video evidence was required. It also said there was no requirement for a witness’s interview, including McKeown’s, to be video-recorded. The judgment decided the appeal grounds before it; it did not revisit the jury’s guilty verdict.